Monday, December 10, 2012

Our Take on the Gay Marriage Cases Going to the SCOTUS

Old news... the Supreme Court is going to decide on the constitutionality of DOMA (Defense of Marriage Act) and Prop 8 from California. For what it's worth here is my take on the two distinct cases based purely on the law.

DOMA should be struck down. The Feds have no authority to define marriage. That one isn't even a close call.

Prop 8 should probably be upheld (reversing the decision of the 9th Circuit). Whatever one may think of gay marriage the Constitution is silent on the subject. It is NOT a fundamental right. That leaves it as a states rights issue. California voted and it's not the place of the courts to act as a super legislature.

6 comments:

If the feds have no authority to define marriage, then what of benefits (like tax credits and such) to homosexual couples who claim "married" status? Should they be entitled to them? If so, then the federal government is still "defining marriage." --Chris

Chris the Feds can define benefit eligibility i.e. married or single etc. But it is the states that define marriage under our system of government. If you are married under the law of your state then you are eligible for whatever benefits are extended to married persons.

@John: I agree, and I think that is the right way to handle "right to life" issues as well. That, too, traditionally comes under the "police power" of the several states, and is not a Federal matter. That is why Roe v. Wade was such bad law.

Why should the Federal Government have to defer to the States for the purpose of interpreting federal law? Everything else in federal law can be defined by federal legislation, what is the difference when it comes to marriage?

The direct result of this principle is to effectively make the lowest standard for marriage the federal definition. If Hawaii decides to legalise polygamy, the federal gov't would have to recognize all such marriages; if Vermont wanted to recognize trans-species marriages, the Federal government would have to recognize those too; and not just for Vermont and Hawaii residents, but for anyone who travels to those states to get "married".

Why should the Federal Government have to defer to the States for the purpose of interpreting federal law?

Because in those areas which are the proper purview of the states, the states are sovereign, and the Federal government is not. To the extent that Federal law deals with matters which are inherently subject to state sovereignty, it must do so in a way that defers to the proper authority of the states.

To do otherwise would be to empty the word "sovereignty" of its meaning. If we do that, we might as well give up the fiction that we have a genuinely federal system.

GabrielWhat Chris said with one caveat. The 14th Amendment made the Federal Government sovereign, but only within the scope of it's explicitly defined powers. Nowhere does the Constitution give the Feds the authority to define marriage.

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